N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

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IN RE ADRIANUS JOHAN NES AND MARIA REIJERS

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2014

- 1052

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Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 11/718,322.

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Decided: June 5, 2014

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T IMOTHY J. Z ARLEY

, Zarley Law Firm, P.L.C., of Des Moines, Iowa, for appellant.

N ATHAN K. K ELLEY

, Deputy General Counsel for Inte llectual Property Law and Solicitor, for appellee. With
him on the brief were M ARY L. K ELLY and M ICHAEL S.

F ORMAN

, Associate Solicitors.

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Before P ROST

, ∗ Chief Judge

, T ARANTO and C HEN

, Circuit Judges.

∗ Sharon Prost assumed the position of Chief Judge on May 31, 2014.IN RE REIJERS 2

P ER C URIAM

. Adrianus Johannes Maria Reijers appeals the decision
of the United States Patent and Trademark Office ’ s Board of Patent Appeals and Interferences (“Board”) affirming
the rejec tion of four claims of Reijers’s patent application. Reijers challenges the Board’s finding that independent
C laim 11 is anticipated under 35 U.S.C. § 102(b) by U.S.

Patent No. 2,211 ,4 90 (“Braun”). 1 Because substantial evidence supports the Board’s conclusion that Braun anticipates C laim 11, we affirm.

I

Reijers ’s application claims a method of removing li quid from the surface of a “food strand .” The strand is moved through a series of “gas flows” or “gas knives” that blow liquid from the strand. Independent Claim 11

states :
11. Method for removing liquid from the surface of a food product, characterised [ sic ] in that

the food product is supplied as a food strand, which food strand is successively carried through a plura lity of gas flows

wherein a supply means for gas is placed adjacently of a transport route of the food product and

1 The Board also affirmed the Examiner’s rejection of dependent Claims 12, 13, and 14. Reijers does not argue that the three depend ent claims are patentable if
C laim 11 is not. Accordingly, we do not separately a ddress dependent C laims 12, 13, and 14. Those claims fall
with C laim 11. See In re Nielson , 816 F.2d 1567, 1572 (Fed. Cir. 1987).IN RE REIJERS 3

the supply means for gas are adapted to generate the plurality of gas flows crossing the transport route successively in the direction of transport

wherein the separate gas flows originate from placed

- apart slots to blow liquid from the food product in a number of phases by a number of su ccessive and mutually separated gas knives.

J.A. 32.

The Examiner rejected C laim 11 as anticipated by
Braun. Similar to C laim 11 in Reijers’s application, the Braun patent claim s a method for drying food products.
Claim 5 reads:

5. A method of d rying tubular structures which comprises inflating a tubular structure with a gas,
then passing said tubular structure over a conduit and ejecting a hot gas from openings in said co nduit directed towards said tubular structure in order to suspend said tubular structure in said hot gas and thereby dry the same.

Braun, col. 5: 33

– 6:2

. As an example of a “ tubular stru cture, ” Braun describes “ artificial sausage skins, from
solution s or fibrous masses of vegetable or animal origin. ”
Id. col. 1 :2– 4. Braun further discloses that the claimed conduit “openings” may take the form of “parallel conti nuous rows of openings separate d by a small interval . . . .”
Id. col. 3 : 24

– 26. The pressure of the gas ejected through the openings may be varied depending on the type of tubular product to be dried. See id. col. 2 : 38 –4 6 (co ntrasting the relativ ely low minimum pressures needed to dry most tubular products with the higher pressures needed to dry the “special case[]” of “coronary sausage”).

In rejecting C laim 11 as anticipated , the Examiner
concluded that Braun disclose s “ a plurality of gas flows ”— ejected from “placed

- apart slots ”— that separately flow

“ over the sausage food product to dry the sausage. ”IN RE REIJERS 4

J.A. 57. Reijers appealed the rejection to the Board, arguing that “ Braun does not teach that the openings blow liquid from the product or that t he openings repr esent successive, mutually separate gas knives that blow liquid from the product in phases.” J.A. 3. In affirming the Examiner’s rejection, the Board found that Braun necessarily would anticipate the claim elements that Reijers argu ed were not expressly disclosed.

Braun’s openings are in the form of placed

- apart

s lots. These placed

- apart slots /openings of Braun, like those recited in claim 11, necessarily would create successive and mutually separated gas knives, and Appellant provides t he appeal record with no explanation to the contrary. Likewise, the separate gas flows originating from Braun’s slots/openings necessarily would blow liquid from food product in the course of achieving the drying objective desired by Braun. Again, Appell ant does not offer a contrary explanation in the record of this appeal.

J.A. 3 –4 ( internal citations omitted)

. Reijers timely appealed. We have jurisdiction purs uant to 28 U.S.C. § 1295(a)(4)(A).

II

Ant icipation is a question of fact, as is the subsidiary question of whether a prior art reference discloses —either expressly or inherently

— a claim limitation. In re
Schreiber , 128 F.3d 1473, 1477 (Fed. Cir. 1997)

. We uphold decisions of the Board on factua l matters if there
is substantial evidence in the record to support the
Board’ s findings. In re Hyatt , 211 F.3d 1367, 137 2 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept that evidence as ad equate to sup port a conclusion. Consol. Edison Co. of New
York v. N.L.R.B. , 305 U.S. 197, 229 (1938)

.IN RE REIJERS 5

Reijers’s principal argument on appeal is that Braun does not disclose a method for blowing liquid from a food product, as required by Claim 11. Reijers argues that “there is no express disclosure in Braun that there is liquid on the surface of the sausage casing.” Appellant’s
Br. 12. Moreover, Reijers contends that Braun “teaches a gentle drying process,” not a blowing drying process. Quoting language from Braun’s specification, Reije rs notes that Braun’s gas flows merely “play over” the co nveyed cas ing.

We note that the Board did not find , and the Director
need not show , that Braun expressly disclose s the blowing of liquid from the surface of a sausage casing. The Board found that “gas flows originating from Braun’s slots/openings necessarily would blow liquid from food product in the course of achieving the drying objecti ve desired by Braun.” J.A. 3

– 4 (emphasis added). We have long held that such inherent di sclosure may serve as a basis for a finding of anticipation. “It is well settled that a prior art reference may anticipate when the claim limitations not expressly found in that reference are
nonetheless inherent in it. Under the principles of inhe rency, if the prior art necessarily functions in accordance with, or includes, the claimed limitations, it anticipates.” In re Cruciferous Sprout Litig ., 301 F.3d 1343, 1349 (Fed.
Cir. 2002 ) (citations and internal quotation marks omi tted). Moreover, an inhere nt disclosure may anticipate a
method claim. See i d. ; see also Perricone v. Medicis Pharm. Corp. , 432 F.3d 1368, 1378 (Fed. Cir. 2005) ( “[W]hen considering a prior art method, the anticipation
doctrine examines the natural and inherent results in
that met hod without regard to the full recognition of those
benefits or characteristics within the art field at the time of the prior art disclosure.”).

Based on the disclosures in Braun, we find that sufficient evidence exists for a reasonable mind to conclude
th at Braun would necessarily blow liquid off a food pro d-IN RE REIJERS 6

uct as part of its drying pro cess. The Board could reaso nably conclude that Braun’s sausage casings

— which, after all, need to be dried

— necessarily include the presence of at least some liquid on their surface. And e ven if Braun did not contemplate using its claimed method specifically for blowing surface l iquid off a sausage casing , its discl osure of ejected gas delivered at varying pressures

, see Braun , col. 2: 38

– 46, support s the Board’s conclusion that performing the method would result in blowing liquid off the casing

. See Perricone , 432 F.3d at 1378.

We find unpersuasive Reijers’s arguments to the co ntrary. Reijers contends that Braun teaches that the ejected gas flow s “countercurrent” to the casing. Appe llant ’s Br. 12 (citing Braun

, col. 1: 45

– 55). Reijers suggests that a countercurrent gas flow

— that is, a flow that moves in the opposite direction as the conveyed casing

— would be incapable of blowing liquid off a food product. There are two problems with this argument. First , as the Dire ctor points out, Braun elsewhere describes its gas stream as flowing “perpendicular” to the tubular food product. Braun, col. 4: 22

– 32 ; see also id. at Fig. 6. The angle of the ejected gas in Braun appears similar to the angle of the ejected gas described in Reijers’ s application. Compare

Braun at Fig. 6

, with J.A. 130 at Fig. 2. Second, even if Reijers is correct that the gas flow disclosed in Braun

runs countercurrent to the casing, Reijers does not e xplain why such a flow would fail to blow liquid off the casing’ s surface. Reijers points to language in Braun suggesting that the flow of gas ensures that the casing is not blown away. The fact, however, that the gas flow does

not blow away the casing itself does not therefore mean
that the flow would not blow away liquid from the surface of the casing.

Reijers also argues that Braun does not teach the u se of a food strand; instead, Reijers maintains, Braun di scloses only the drying of an artificial sausage skin. This argument, which would require us to const rue the claimIN RE REIJERS 7

term “food strand,” was not raised before the Board and
we therefore decline to consider it for the first time on appeal. We note that the Examiner was not obligated to construe every claim term when examining Reijers’s
patent application. See In re Jung , 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“ There has never been a requirement for
an examiner to make an on

- the

- record claim construction of every term in every rejected claim and to explain every possible difference between the prior art and the claimed invention in order to make out a prima facie rejection. ”).

For the reasons stated above, the Board’ s decision is
affirmed.

AFFIRMED

C OSTS

No costs.